One of an employer's primary defenses to a retaliation claim is -- no adverse employment action. But the strength of the defense often depended on where you were. A definitive (and more uniform) answer got a step closer today as the Supreme Court granted certiorari in the 4th Circuit en banc decision White v. Burlington Northern, at the request of the employer and two of its amicus, the Equal Employment Advisory Council and the Association of American Railroads.

For why the Supreme Court might need to sort things out, you need look no further than the listing of the opinions of the various judges of the 6th Circuit in the underlying case:

GIBBONS, J., announced the judgment and majority opinion of the en banc court on all issues. The entire en banc court joined Parts I (Background) and III (Attorney's Fees) of the majority opinion. Part II (Adverse Employment Action) of the majority opinion was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, GILMAN, ROGERS, SUTTON, and COOK, JJ., and Part IV (Punitive Damages) was joined by MARTIN, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 36-51), filed a separate concurring opinion joining Parts I, III, and IV of the majority opinion and writing separately as to Parts II and V, in which he was joined by MARTIN, DAUGHTREY, MOORE, and COLE, JJ. SUTTON, J. (pp. 52-85), filed an opinion concurring in Parts I - III and dissenting from Parts IV and V, in which he was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, and ROGERS, JJ.

In what was shaping up as a lack luster term for Supreme Court action on employment law matters, this ups the ante, particularly for those in the 5th Circuit which has long used the "ultimate employment action" test -- by far the most employer favorable. See Mattern v. Eastman Kodak, 104 F.3d 702 (5th Cir. 1997).

Although this is the type of case where employers might think whether it is Judge or Justice Alito could make a favorable difference, before assuming so they should probably read Judge Alito's opinion, reversing summary judgment for the employer, in Mondzelewski v. Pathmark Stores, Inc,162 F.3D 778 (3rd Cir. 1998)[pdf]:

We readily agree with the District Court's observation that assignment to a 9:00 a.m. to 5:00 p.m. shift "cannot be considered an extreme hardship given most of this country's workers are governed by that shift." Mondzelewski, 976 F. Supp. at 284. But the critical question for present purposes is not whether Mondzelewski suffered an "extreme hardship," but whether his terms, conditions, or privileges of employment were altered. Nothing in the ADA suggests that employers are prohibited from taking only those retaliatory actions that impose an "extreme hardship." To be sure, the relatively mild nature of Pathmark's allegedly retaliatory conduct may not be without legal or practical significance, but it is not dispositive with respect to the narrow legal question now before us regarding 42 U.S.C. § 12203(a).